Kilcoyne v. Golden Beach Corp.
| Decision Date | 16 May 1931 |
| Citation | 136 So. 350,101 Fla. 1470 |
| Court | Florida Supreme Court |
| Parties | KILCOYNE v. GOLDEN BEACH CORPORATION. |
Rehearing Denied June 29, 1931.
Suit by the Golden Beach Corporation against Frank J. Ryan and others. A decree pro confesso was entered against defendant named and afterwards confirmed, and from a final decree against the defendant P. W. Kilcoyne, he appeals.
Decree reversed, with directions.
Syllabus by the Court.
Where in a contract for the sale of land, the vendor retains title and possession agreeing to convey upon payment in full by vendee, who before maturity of the deferred payments agrees with a third person for a consideration paid to convey the land to him and then defaulting in his payments to his vendor executes to him a quitclaim deed to the land renouncing and quitclaiming all his (the vendee's) right and title in the land, and such quitclaim deed contains a clause that the vendor in the original agreement, the owner of the land, will assume and fulfill the vendee's contract with the third person, the vendor in such state of circumstances has no ground in equity for a foreclosure of his vendor's lien against the third person because of the vendee's failure to pay the balance due on the original contract.
Where there is no existing indebteness from defendant to complainant, there can be no lien, and where there is no lien there can be no foreclosure.
Where one agrees to sell land to another and obtains payments on the contract purchase price and by his own act renders it impossible for him to convey the land to his vendee, the purchaser has an action against his vendor to recover the money paid on the contract. Appeal from Circuit Court, Dade County; Paul D. Barns, judge.
Kurtz & Reed, of Miami, for appellant.
Burdine Terry & Fleming, of Miami, for appellee.
Golden Beach Corporation was the owner on February 15, 1924, of a lot of land described as lot 3, block C of section B of Golden Beach, a subdivision in section 35, township 51 south, range 42 east, and section 2, township 52 south, range 42 east, as shown by map or plat recorded in Plat Book 9, page 52, Public Records of Dade County, Fla.
On that date the corporation entered into an agreement with Frank J. Ryan under which the corporation promised to 'convey and assure' to Ryan in 'fee simple, and clear of all encumbrances whatsoever by a warranty deed' the land above described if Ryan 'shall first make all of the payments, both principal and interest, and shall also perform all of the covenants, and agreements hereinafter mentioned' on his part to be made and performed.
The purchase price of the land as agreed upon between the parties was $7,500, which was to be paid as follows: $1,125 cash, which was paid; $750 payable on or before May 25, 1924; $1,875 payable February 15, 1925; $1,875 payable February 15, 1926; and $1,875 payable February 15, 1927.
The purchaser agreed to pay all taxes, to comply with all building restrictions, to pay each and every one of the promissory notes which were executed in evidence of the deferred payments, to pay all costs and attorney's fees reasonably incurred by the owner in collecting any sum of money under the agreement, and to perform all the agreements, conditions, and covenants promptly as required by the agreement.
The agreement contained an acceleration clause under which, upon default in the payment of 'money herein referred to, principal or interest,' or neglect or refusal by the purchaser to comply with any of the agreements, the entire sum remaining unpaid on the purchase price should become due and the owner might pursue his appropriate remedy for the collection of the amount due. The contract enumerated the restrictions applying to the use of the land and contained clauses providing for certain improvements to be made by the owner in the development of the subdivision. All notes except the last were paid and the interest upon that one to February 15, 1928, and the further sum of $21.87 was paid on account of the semiannual interest due on July 15, 1928.
In August, 1928, Golden Beach Corporation exhibited its bill in chancery in the circuit court for Dade county against Frank J. Ryan and P. W. Kilcoyne and wife to enforce a vendor's lien, prayed that its 'claim' be decreed to be superior in dignity to the claim of the defendants, that an accounting be made of the amount due under the contract, that the defendants be required to pay the amount found to be due by a short day with interest, costs, and attorney's fees, and in default of such payment that the 'premises' be sold at public auction and the proceeds of the sale be applied to the debt found to be due and for a 'deficiency judgment agreeable with the rules of practice in this State' in the event the amount realized at the sale was insufficient to pay the sum found to be due and for general relief.
A pro confesso decree was entered against Frank J. Ryan and afterwards confirmed by the court.
P. W Kilcoyne answered the bill and averred that the property was covered by mortgages, that Frank J. Ryan assigned his interest in the contract to H. A. Naberhuis and George E. Warren. That in July, 1925, Naberhuis and wife entered into a contract with the defendant Kilcoyne to convey the land to him and that agreement was duly recorded; that before the institution of the suit Naberhuis and Warren executed and delivered to ...
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